Hoff: Burning flag, criminalizing free speech despicable

I am fortunate to live in this great country, with all of its opportunity and freedom. I am disgusted by people who burn the American flag, especially as someone with military veterans in his family. But even though I am personally against flag burning, I am more appalled by the suggestion that we ought to criminalize and jail people for unpopular, even deplorable, speech and expression. Protecting even the most odious forms of free speech is the hallmark of a free society, and precisely what the flag represents.

President-elect Donald Trump’s recent, chilling Tweet, read: “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”

Protesters attempt to burn a flag outside Quicken Loans Arena during the Republican National Convention July 20.(Photo: Tolly Taylor/Special for USA TODAY)

But Trump is not alone in his unconstitutional, king-like proclamations, as Hillary Clinton once co-sponsored a bill in the Senate, the Flag Protection Act of 2005, which would have made flag burning a punishable, criminal offense.

Fortunately, that bill failed. Even if it had passed, it would have been extremely unlikely to survive constitutional scrutiny, based on decades of legal precedent and the Supreme Court’s protection of offensive expression, including flag burning, as a “bedrock principle underlying the First Amendment.”

Of course, citizens could attempt to amend the United States Constitution, to take away the rights of free speech and free expression that our Founding Fathers so revered. But that would be dangerous, foolish and patently un-American.

Clinton then, and Trump now, are both wrong in their attempts to criminalize free speech and expression, even though I, and the overwhelming majority of Americans, find flag burning extremely offensive. The United States Supreme Court has twice held that the First Amendment protects flag burning as symbolic speech.

Donald Trump(Photo: Associated Press)

Justice Antonin Scalia, whom Trump has referred to as the “ideal” justice, was personally offended by flag burning, but believed it was clearly protected by the Constitution. In a 2012 interview with CNN, Scalia remarked: "If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged — and it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress."

In other words, it is not only pure speech that is protected, but also symbolism of that speech.

Many conservatives, and many Americans generally — liberal, conservative or otherwise — understand that the answer to unpopular, even disgusting symbolic speech like burning the flag, is more speech and more freedom, not less.

Republican Senate Majority Leader Mitch McConnell wrote in 2006 about the issue: "No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that."

Republican Congressman Sean Duffy of Wisconsin recently said on CNN: “[W]e want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag, even though so many of us who love our country and love our flag object to it.”

Before the United States was formed, the British legal system punished speech that the king deemed to be unacceptable, especially punishing those citizens not among the ruling class. Our Founders’ rejection of suppression of dissent became the main impetus for the creation of the First Amendment in our newly established country. “Congress shall make no law … abridging the freedom of speech” was considered an extraordinary, even radical, yet powerful command at the time of its enactment.

Authoritarian and totalitarian countries without any significant freedoms criminalize and jail people who do not engage in what the government deems to be mandatory displays of patriotism or who dissent in ways critical of the government. Even countries that purport to stand for more freedom are experiencing the dangers and the slippery slope caused by chipping away at free speech and expression.

India, for example, a country where freedom of speech and expression are protected by its constitution, has had a decline in freedom as some of its leaders have looked the other way or even expressly endorsed the imprisonment of peaceful protesters. Many of India’s citizens, as a result, have been forced into self-censorship out of a real fear of being jailed.

The freedom to dissent and to petition one’s government for the redress of grievances, even via despicable symbolic speech such as burning the American flag, should never be criminalized. To do so would diminish the very freedoms for which the flag stands, endanger the right to express other unpopular views, and put our great country more in line with ones that do not stand for or value the rights that our Founders knew to be so sacred.